White v. Gemini Traffic Sales, ARB No. 08-057, ALJ No. 2007-STA-13 (ARB Apr. 23, 2008)

U.S. Department of Labor

Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210

ARB CASE NO. 08-057
ALJ CASE NO. 2007-STA-013
DATE: April 23, 2008

In the Matter of:

FERNANDO WHITE,

       COMPLAINANT,

    v.

GEMINI TRAFFIC SALES,

       RESPONDENT.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

FINAL DECISION AND ORDER APPROVING SETTLEMENT
AND DISMISSING COMPLAINT WITH PREJUDICE

   This case arises under Section 405, the employee protection provision, of the Surface Transportation Assistance Act of 1982 (STAA)¹ and its implementing regulations.² The Administrative Law Judge (ALJ) below issued a Recommended Decision and Order Approving Settlement Agreement and Dismissing Complaint (R. D. & O.) on February 27, 2008.

---

[Page 2]

   Under the regulations implementing the STAA, the parties may settle a case at any time after filing objections to the Assistant Secretary's preliminary findings, and before those findings become final, "if the participating parties agree to a settlement and such settlement is approved by the Administrative Review Board [Board] . . . or the ALJ." ³ The regulations direct the parties to file a copy of the settlement with the ALJ, the Board, or United States Department of Labor.⁴

   Pursuant to 29 C.F.R. § 1978.109(c)(1), the Board "shall issue a final decision and order based on the record and the decision and order of the administrative law judge." In reviewing the ALJ's legal conclusions, the Board, as the Secretary's designee, acts with "all the powers [the Secretary] would have in making the initial decision . . . ."⁵ Therefore, the Board reviews the ALJ's legal conclusions de novo.⁶

   The Board received the R. D. & O. and issued a Notice of Review and Briefing Schedule apprising the parties of their right to submit briefs supporting or opposing the ALJ's recommended decision on March 13, 2008. Neither the Complainant, Fernando White, nor the Respondent, Gemini Traffic Sales, filed a brief with the Board.

   The ARB concurs with the ALJ's determination that the parties' settlement is fair, adequate and reasonable. But, we note that the Settlement Agreement encompasses the settlement of matters under laws other than the STAA.⁷ The Board's authority over settlement agreements is limited to the statutes that are within the Board's jurisdiction as defined by the applicable statute. Our approval is limited to this case, and we understand the settlement terms relating to release of STAA claims as pertaining only to the facts and circumstances giving rise to this case. Therefore, we approve only the terms of the Agreement pertaining to White's STAA claim, ARB No. 08-057, 2007-STA-013.⁸

   Furthermore, if the provisions in paragraph G of the Settlement Agreement and Release were to preclude White from communicating with federal or state enforcement agencies

---

[Page 3]

concerning alleged violations of law, they would violate public policy and therefore, constitute unacceptable "gag" provisions.⁹

   Additionally, we construe paragraph N, the governing law provision, as not limiting the authority of the Secretary of Labor and any federal court, which shall be governed in all respects by the laws and regulations of the United States.¹⁰

   The parties have agreed to settle White's STAA claim. Accordingly, with the reservations noted above, we APPROVE the agreement and DISMISS the complaint with prejudice.

   SO ORDERED.

            M. CYNTHIA DOUGLASS
            Chief Administrative Appeals Judge

            OLIVER M. TRANSUE
            0Administrative Appeals Judge

[ENDNOTES]

¹ 49 U.S.C.A. § 31105 (West 2007). The STAA has been amended since Fernando White filed his complaint. See Implementing Recommendations of the 9/11 Commission Act of 2007, P.L. 110-53, 121 Stat. 266 (Aug. 3, 2007). We need not decide here whether the amendments are applicable to this complaint because even if the amendments applied to this complaint, they are not implicated by the settlement at issue here and thus would not affect our decision.

² 29 C.F.R. Part 1978 (2007).

³ 29 C.F.R. § 1978.111(d)(2).

⁴ See id.

⁵ 5 U.S.C.A. § 557(b) (West 2008).

⁶ See Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991).

⁷ See, e.g., para. B of the Agreement.

⁸ Fish v. H & R Transfer, ARB No. 01-071, ALJ No. 2000-STA-056, slip op. at 2 (ARB Apr. 30, 2003).

⁹ Conn. Light & Power Co. v. Sec'y, U.S. Dep't of Labor, 85 F.3d 89, 95-96 (2d Cir. 1996) (employer engaged in unlawful discrimination by restricting complainant's ability to provide regulatory agencies with information; improper "gag" provision constituted adverse employment action); Ruud v. Westinghouse Hanford Co., ARB No. 96-087, ALJ No. 1988-ERA-033, slip op. at 6 (ARB Nov. 10, 1997).

¹⁰ See Phillips v. Citizens Ass'n for Sound Energy, 1991-ERA-025, slip op. at 2 (Sec'y Nov. 4, 1991).